White v. State, No. 06-05-00049-CR.

CourtSupreme Court of Texas
Writing for the CourtCarter
Citation181 S.W.3d 514
Docket NumberNo. 06-05-00049-CR.
Decision Date14 December 2005
PartiesNatalie Michelle WHITE, Appellant, v. The STATE of Texas, Appellee.

Page 514

181 S.W.3d 514
Natalie Michelle WHITE, Appellant,
The STATE of Texas, Appellee.
No. 06-05-00049-CR.
Court of Appeals of Texas, Texarkana.
Submitted December 1, 2005.
Decided December 14, 2005.

Page 515

Elizabeth DeRieux, Brown McCarroll L.L.P., Eric Albritton, Eric Albritton, P.C., Longview, for appellant.

William Jennings, Dist. Atty., Ray Bowman, Asst. Dist. Atty., Longview, for appellee.



Opinion by Justice CARTER.

On Wednesday, August 18, 2004, sixteen-year-old Natalie Michelle White drove

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her car into oncoming traffic on Loop 281 in Longview, Texas, and crashed into the vehicle in which eighteen-year-old Lauren Frazier was riding. White was taken to a hospital as a result of injuries she sustained; Frazier, who had planned to leave for her first year at Baylor University the following morning, died an hour after the crash. Police had White's blood drawn at the hospital for purposes of alcohol testing. See Tex. Transp. Code Ann. § 724.012 (Vernon Supp.2005). Test results later revealed White's blood alcohol contained .19 grams of alcohol per 100 milliliters of blood, an amount greater than twice the legal limit for persons over the age of twenty-one. See Tex. Pen.Code Ann. § 49.01(2)(B) (Vernon 2003).

The State charged White with intoxication manslaughter and sought to have her case transferred from juvenile court to district court. See Tex. Fam.Code Ann. § 54.02 (Vernon 2002). White did not oppose the transfer.1 White pled guilty to the charge December 8, 2004, and a petit jury was empaneled to determine White's punishment. After hearing evidence and argument December 15, 2004, the jury assessed White's sentence at nine years' imprisonment, but did not grant community supervision. The trial court formally sentenced White in accordance with the jury's verdict January 3, 2005.

White filed a motion for new trial, and the trial court conducted a hearing on the motion. The trial court overruled White's motion for new trial March 10, 2005. White now appeals, raising five issues. For the reasons stated below, we affirm the trial court's judgment.

I. Did the Trial Court Abuse Its Discretion By Denying White's Motion for New Trial?

In one point of error, White presents the following, which we set forth exactly as written in White's brief on appeal:

The Trial Court erred in denying Ms. White's Motion for New Trial because four of the twelve jurors should never have been seated: two jurors were absolutely disqualified under Tex.Code Crim. P. 35.19, while two other jurors failed to respond to voir dire questions, misrepresenting their background and biases. Each of these four errors was sufficient to require a new trial. The cumulative effect of the four errors also required a new trial.

We interpret the central focus of this issue as a challenge to the trial court's ruling on White's motion for new trial.

The standard that we must use to review a ruling on a motion for new trial is well settled: abuse of discretion. See Lewis v. State, 126 S.W.3d 572, 579 (Tex.App.-Texarkana 2004, pet. ref'd). "We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable." Acosta v. State, 160 S.W.3d 204, 210 (Tex.App.-Fort Worth 2005, no pet.) (citing Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004)). Therefore, while we ultimately may not have made the same decision as the trial court had we presided at the trial proceedings, we must nonetheless view the evidence presented at the hearing on the motion for new trial in the light most favorable to the trial court's ruling, and we

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will hold a trial court has abused its discretion in ruling on a motion for new trial only when no reasonable view of the record could support the lower court's ruling. Acosta, 160 S.W.3d at 210.

White raises two subissues in support of her contention that the trial court erred by denying her motion for new trial: (A) jurors Vernessia Giddings and Lamar Fredell Jones were "absolutely" disqualified from jury service by Article 35.19 of the Texas Code of Criminal Procedure; and (B) jurors Roosevelt Evers and Mona Williams failed to respond to voir dire questions about their backgrounds and biases, and, therefore, engaged in juror misconduct that necessitates granting a new trial.

A. Giddings and Jones Were Absolutely Disqualified, But White Has Not Shown Harm.

The record before us shows both Giddings and Jones had misdemeanor theft by worthless check charges pending at the time they sat on White's jury. Either the defense or the State may challenge a prospective juror for cause if that member of the venire panel is "under indictment or other legal accusation for misdemeanor theft or a felony[.]" Tex.Code Crim. Proc. Ann. art. 35.16(a)(3) (Vernon Supp.2005). A panel member who appears to be under such legal accusation should not be empaneled absent consent from both parties. Tex.Code Crim. Proc. Ann. art. 35.19 (Vernon 1989). Because our law requires the trial court to exclude panel members who have theft charges pending against them at the time they are called to jury service, White asserts the trial court erred by denying her motion for new trial.

"A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under Article 35.19 ... only if: (1) the defendant raises the disqualification before the verdict is entered; or (2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror." Tex.Code Crim. Proc. Ann. art. 44.46 (Vernon Supp.2005). In this case, White did not raise this issue at the trial court level until after the jury had returned its verdict. Therefore, White was required to show at the hearing on her motion for new trial that she suffered "significant harm" as a result of the service of the suspect jurors.

The trial court's denial of White's motion for new trial indicates the court below concluded White had not met her burden of showing "significant harm" directly attributable to the service of the suspect jurors. Accordingly, if any reasonable view of the evidence supports the trial court's conclusion that White did not meet this burden, the standard of appellate review requires us to affirm the trial court's ruling. Accord Ford v. State, 129 S.W.3d 541, 548-49 (Tex.App.-Dallas 2003, pet. ref'd) (concluding trial court's decision was not "arbitrary" or "unreasonable" in concluding juror did not lie during voir dire; denial of motion for new trial affirmed).

A defendant's conviction and sentence does not alone constitute a showing of "significant harm" required by Article 44.46 of the Texas Code of Criminal Procedure. State v. Read, 965 S.W.2d 74, 77 (Tex.App.-Austin 1998, no pet.); Hernandez v. State, 952 S.W.2d 59, 71 (Tex.App.-Austin 1997), rev'd on other grounds, 957 S.W.2d 851 (Tex.Crim.App.1998). Instead, the record from the post-trial hearing must demonstrate the defendant's alleged substantial harm is directly attributable to the service of the objectionable jurors. See, e.g., Perez v. State, 11 S.W.3d 218, 221

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(Tex.Crim.App.2000); Perez v. State, 41 S.W.3d 712, 716 (Tex.App.-Corpus Christi 2001, no pet.) (opinion on remand); Ristoff v. State, 985 S.W.2d 623, 623-24 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

The facts in the case now before us most closely parallel those presented to the First Court of Appeals in Ristoff. There the appellant was convicted under the Texas Clean Air Act of three misdemeanor offenses of outdoor burning. Ristoff asserted he was entitled to a new trial because one of the jurors in his case was under indictment for welfare fraud. Ristoff, 985 S.W.2d at 623. The State did not dispute the status of the objected-to juror's indictment, and the record was also clear that the juror was unaware of the indictment at the time of Ristoff's trial. Id. at 623-24. On appeal, the First Court of Appeals noted "at the hearing on appellant's motions [for new trial], appellant made no attempt to show significant harm, nor is any apparent." Id. at 624. The appellate court then held Ristoff had failed to meet his burden of proof on appeal, and the court overruled his point of error. Id.

In the case now on appeal, White has not cited this Court to any evidence in the record that demonstrates she suffered harm as a direct result of Giddings and Jones' jury service. However, after reviewing the entire record of the hearing on the motion for new trial, we find there is no evidence that Giddings' and Jones' jury service directly caused White "significant harm." Moreover, the trial court heard testimony that both Giddings and Jones were unaware of the pending criminal charges. Viewing this evidence in the light most favorable to the trial court's ruling, as we must, this evidence would support the court's conclusion that White did not suffer any direct harm, let alone "substantial harm," that could be attributable to the fact Giddings and Jones had charges pending against them at the time of their jury service. Accordingly, we cannot say the trial court acted arbitrarily or unreasonably by overruling White's motion for new trial on the basis of Giddings' and Jones' jury service.

B. Jurors Williams and Evers Did Not Engage in Misconduct Requiring a New Trial.

White next asserts the trial court erred in overruling her motion for new trial because the record purportedly shows jurors Williams and Evers did not truthfully answer questions during voir dire. This lack of candor, according to White, resulted in juror misconduct that should entitle her to a new trial. Because the alleged misconduct occurred during voir dire, the trial court was required to determine (1) whether the juror...

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